§ Motion made, and Question put,
§ That the consideration of Private Members' Bills may be proceeded with at this day's sitting, though opposed, until Five o'clock.—[Mr. Stallard.]
§ The House divided: Ayes 67, Noes 4.
1083| Division No. 200] | AYES | [.400p.m. |
| Anderson, Donald | Grocott, Bruce | Perry, Ernest |
| Barnett, Guy (Greenwich) | Hamilton, W. W. (Central Fife) | Rhodes James, R. |
| Benyon, W. | Harrison, Rt Hon Walter | Richardson, Miss Jo |
| Berry, Hon Anthony | Hayman, Mrs Helena | Rodgers, George (Chorley) |
| Biggs-Davlson, John | Jackson, Miss Margaret (Lincoln) | Roper, John |
| Bottomley, Peter | Jenkins, Hugh (Putney) | Rossi, Hugh (Hornsey) |
| Brown, Hugh D. (Provan) | Kaufman, Gerald | Smith, Dudley (Warwick) |
| Buchan, Norman | Kerr, Russell | Snape, Peter |
| Buck, Antony | Lawson, Nigel | Spearing, Nigel |
| Canavan, Dennis | Litterick, Tom | Slallard, A. W. |
| Clark, William (Croydon S) | McCartney, Hugh | Stewart, Rt Hon M. (Fulham) |
| Cocks, Rt Hon Michael | McCrindle, Robert | Summersklil, Hon Dr Shirley |
| Cook, Robin F. (Edin C) | McDonald, Dr Oonagh | Thorpe, Rt Hon Jeremy (N Devon) |
| Crowther, Stan (Rotherham) | MacFarquhar, Roderick | Tierney, Sydney |
| Davles, Denzll (Llanelll) | Marks, Kenneth | Townsend, Cyril D. |
| Davis, Clinton (Hackney C) | Mates, Michael | Ward, Michael |
| Dunwoody, Mrs Gwyneth | Maynard, Miss Joan | Weatherill, Bernard |
| Dykes, Hugh | Mikardo, Ian | Wise, Mrs Audrey |
| English, Michael | Miller, Dr M. S. (E Kilbrlde) | Younger, Hon George |
| Evans, Fred (Caerphilly) | Mlscampbell, Norman | |
| Flannery, Martin | Moore, John (Croydon C) | TELLERS FOR THE AYES: |
| Foot, Rt Hon Michael | Neubert, Michael | Mr. Ted Graham and |
| Fowler, Gerald (The Wrekin) | Page, John (Harrow West) | Mr. Bruce Douglas-Mann. |
| Fraser, John (Lambeth, N'w'd) | Pavltt, Laurle |
| NOES | ||
| Farr, John | Scott, Nicholas | TELLERS FOR THE NOES: |
| Klmball, Marcus | Taylor, R. (Croydon NW) | Mr. Nicholas Fairbairn and |
| Mr. Roger Moate. |
§ 57 amendments. I wonder whether I was being a bit uncharitable to him and that he had not understood Mr. Speaker's selection. The first selection is Lords Amendments Nos. 1 and 55. Perhaps the hon. Member thought it said "Lords Amendments 1 to 55" and that he would be able to obtain approval for that batch.
§ But since the hon. Member was unusually restrained in presenting his case because of the time factor, it may be that he will be able to give a more helpful explanation when he replies to the debate. I do not know whether, under 1085 the rules of order, the hon. Member can now advance his argument.
§ Mr. SpeakerThe hon. Member for Peterborough (Mr. Ward) will reply to the debate since he is the Member in charge of the Bill. He can then answer the questions that have been put to him.
§ Mr. Nicholas Fairbairn (Kinross and West Perthshire)My hon. Friend raised an important issue towards the end of our debate on the Control of Food Premises (Scotland) Bill concerning the principle of drafting. It is extremely unfortunate that a Bill conceived with the intention of altering the law of contract in England and Wales and Northern Ireland is inadvertently allowed just to slip over into Scotland in certain provisions because it happens to be convenient to fiddle around with the law of Scotland as an addendum to the law of England and Wales and of Northern Ireland.
§ Mr. FairbairnI cannot give way. I am interrupting my hon. Friend the Member for Faversham (Mr. Moate). It is my way, and he is giving it. [An HON. MEMBER: "Sing it."] I am a better poet than I am a singer and I would rather put my question in rhyme than in song. Though the hon. Member for West Stirlingshire (Mr. Canavan) thinks that 1 am a lousy painter, I bet him that I can sell my paintings for more than he can sell any of his capabilities.
It seems to me to be improper—I hope that my hon. Friend will not mind my making this point—that it should ever be conceived that amendments affecting two totally different legal systems should be grouped together as if they did not have different effects.
§ Mr. MoateI presume that my hon. and learned Friend is referring to the Unfair Contract Terms Bill, although he confused me by referring to the previous debate on the Control of Food Premises (Scotland) Bill. If he is saying that it is wrong in principle to include a Scottish clause in this Bill—
§ Mr. FairbairnThat is one point.
§ Mr. Moate—I disagree with him. I appreciate that we have different legal systems. To me that is a matter of regret, though that is a rather challenging state- 1086 ment to make to my hon. and learned Friend.
§ 4.15 p.m.
§ Mr. WardHon. Members may recall that the whole consideration of exemption clauses by the Law Commission was carried out separately for Scotland and for England and Wales. There are two separate Law Commissions, probably on account of the sorts of differences in law to which reference has just been made. When the Bill originally came to the House, it was for England and Wales only. It was possible to incorporate a provision for Scotland in this way, only because of the speciality of language. Most people think that it is better to do it in this way.
§ Mr. MoateWe have seen earlier today the folly of having separate Bills for England and Scotland, with different provisions for each, when there is no obvious reasons why the residents of Scotland should be treated differently from the residents of England in, for example, the matter of pavement cafes, which was one of the vital issues that we were discussing earlier. It is a rather dubious approach to introduce legislation for Scotland at a late stage in a separate part of a Bill. The Bill has undergone some very significant changes, particularly in regard to change of name and the insertion of Scotland. I was really seeking information from the hon. Member for Peterborough. I want to pursue further the question which arises under Amendment No. 1. As the hon. Gentleman was not able to move it fully, I thought I might try to analyse the position as I see it. The amendment proposes the insertion of the words
(2) This Part of this Act"—namely, Part I—is subject to Part III; and in relation to cow tracts, the operation of sections 2 to 4 and 7 is".Part I of the Bill seeks to amend the law to provide that negligence shall include not only breach of common law but breach of certain contractual liabilities. That is a major change in the law of this country. Part II relates to Scotland. Part III introduces a number of miscellaneous provisions and in particular contains a number of important exemptions. I hope that I have it right so far, but it is not easy to follow a Bill through the very lengthy debates which have taken 1087 place in this House in Committee and in another place.The key exemptions are those concerning the contracts for the carriage of passengers by sea and by air and in particular the matters to be dealt with by the Athens Convention. Then there is other relevant legislation for which there is also some exemption.
It would seem that the object of the amendment is simply to ensure that Part III applies to Part I with regard to those exemptions. It is a simple intention. My object is to ask why it is necessary at all. I should have thought that nothing could be clearer in the Bill as it stands at present than that Part III applies to the whole of the United Kingdom. It says so at the top of page 13:
Provisions applying to whole of United Kingdom.Why on earth do we need a specific amendment saying that Part III applies to Part I, which is the part of the Bill relevant to England and Wales and Northern Ireland? It would seem to be a totally unnecessary amendment, and as such I should have thought that it does not deserve consideration by this House. I hope that, unless we can have a better explanation, the House will say that this is unnecessary and that we disagree with the Lords in the amendment.
§ Mr. WardThe origin of the separation of Scotland into Part II is to try to bring the work of the two Law Commissions into one measure. That seemed to meet with general approval. It met with the approval of Scottish Members who took part in the discussions, and certainly it found favour with their Lordships in another place.
If it had not been done, it would not have been possible to deal with the law of Scotland at this stage. That could have resulted in real difficulties for those engaged in the making of contracts. That might have been beneficial, for example, to certain people seeking to avoid the effect of the law in England. They might have gone to Scotland to make all their contracts for various purposes. Perhaps that would have created work for lawyers and others in Scotland, but it would have added to the difficulties for consumers generally.
§ Mr. Anthony Grant (Harrow, Central)I know nothing about Scottish law and we may be hearing more about it from my hon. and learned Friend the Member for Kinross and West Perthshire (Mr. Fairbairn), but is the hon. Gentleman saying that the law of contract in Scotland is so vastly different from that of the law relating to ordinary commercial transactions in England that there would be a temptation to pop across the border? I never thought that the laws on contract were so different.
§ Mr. WardI refer the hon. Gentleman to the reports of the two Law Commissions. If he studies the report of the Scottish Law Commission and compares it with the report of the English Law Commission he will see that there are clear differences, especially in language. From the points of view of convenience and assistance to consumers and those engaged in contractual litigation in Scotland, it is better that they should have provisions set out in their legal language. That is why we have decided to have a separate section for Scotland.
The hon. Member for Faversham (Mr. Moate) said that he did not consider the amendment to be strictly necessary. In fact it was put forward as a result of a request for clarification. Although it may not have the significance that it would have had if it had been in the Bill before we sent it to another place, we have taken account of the desire of those in another place to have greater clarity. It is our belief that this small amendment to Clause 1 achieves that. I hope that that explanation will be acceptable to the hon. Gentleman.
§ Mr. FairbairnI find this a thoroughly bad Bill for innumerable reasons. If my hon. Friend the Member for Faversham (Mr. Moate) takes time—it may require considerable time—to read the Renton Report, he will see that it recommends that in whatever branch of law we are dealing with there is no excuse, unless it is the statute law of the United Kingdom, which is universal, such as road traffic legislation, for attempting to frame a Bill for England and Wales and to add into it bits of law for Scotland on what may be the same subject but not involving the same principles.
The whole history of content in the law on contract in Scotland is entirely 1089 different in its origin, application, language and effect, especially in its effect on penalties on tort and breach of contract in respect of this measure. As I understand the Bill, it is intended that many of the situations of the conditions of contract should not operate. Therefore, it is totally contrary to the principle of the Renton Report, which was accepted unanimously on both sides of the House, that there should not be separate Acts for Scotland and England. When this sort of legislation is being conducted it involves something that may loosely be termed contracts, but in many sensitive areas there are differences in history, extent, and attitude.
It is for that reason that I find it extraordinary that this first amendment should say that his part of the legislation, which presumably is the English part, if I may so refer to it—after all, Part I refers to the law of England, Wales and Northern Ireland—shall be subject to Part III. As I understand it, Part III is headed
Provisions applying to the whole of United Kingdom.I know that devolution is a crazy dream in the minds of some and that independence is an even great fantasy in the minds of others. It is nice to be able to welcome, as usual, SNP Members when we are discussing a Bill which alters the law of contract in Scotland!
§ Mr. FairbairnIt is extraordinary that provisions applying to the whole of the United Kingdom are applied under this amendment to England, Wales and Northern Ireland and that apparently Scotland is not part of the United Kingdom, so that it does not apply to Part II, which is the law relating to Scotland. There may be many good reasons for that. The Government may imagine that they have already passed the devolution Bill and that Scotland is a separate and independent State. It may be that the statutes of England, all of which will have to be altered on the occasion of the creation of that happy little oil-fired tartan Ruritanian tax haven which the nationalists propose to set up, will contain such a provision. But I find it difficult to understand why Part III, the provisions applying to the whole of the United Kingdom, should require an amendment specifically applying them to the law of 1090 England, Wales and Northern Ireland and, by inference, excluding them from the provisions which apply to Scotland.
If it is done for greater clarity, as the hon. Member for Peterborough (Mr. Ward) said, so that we can all be certain that we have underlined everything twice and crossed all our t's, it gives rise to an immense contradiction. If, on the other hand, there is a reason why Part III should not apply to Scotland, I should be happy to hear it.
§ Mr. WardI refer the hon. and learned Gentleman to Clause 15—it may appear on the copy of the Bill which he has as Clause 16, because we are handling several versions of the Bill—where he will see that similar words are used to apply Part III to Scotland specifically. However, it is worded slightly differently from the early reference which he is discussing.
§ Mr. FairbairnI am obliged for that explanation which, I regret to say, I had overlooked. But that gives rise to another question, which is why it should be treated differently. If the words "sections 15 to 17" apply to any contract, I simply do not understand it. As a lawyer I am not very good at understanding statutes, but it does not seem to me that the words say the same thing at all.
§ Mr. WardIf the hon. and learned Gentleman will study the wording he will see that the Scottish reference applies only to contracts whereas the English reference has to apply to other matters which are taken into account in the first part of the Bill.
§ 4.30 p.m.
§ Mr. FairbairnI am grateful to the hon. Gentleman. If ever there was a justification for the principle which the Renton Committee laid down, that would seem to be it. It is very unsatisfactory when we are dealing with entirely different systems of law. They are entirely different, because the law of Scotland derives from the civilian system which was learned in Leyden and Paris by Scots lawyers who were excluded from England by the general hostility between the two countries.
So the law of England, which was developed in England alone because the English were excluded from the Continent, was a very good reason why the English were hostile to the Continent. 1091 The law of England was a fantasy which grew up in the minds of Englishmen, whereas the law of Scotland is based on the civilian system. With the laws of the Netherlands and France, and to some extent Germany, which was then called something else, it grew and developed from the law of Rome, on which the law of England is not founded. They are profoundly different systems. It is very bad to have a statute eroding the common civil law of Scotland on the basis of piecemeal legislation, and I deprecate the system.
§ Mr. Anthony GrantI had come to the Chamber to raise matters of more fundamental objection later and I had assumed that this amendment was a formal one which could be allowed to go through speedily. But after I heard the questions of my hon. Friend the Member for Faversham (Mr. Moate) a question mark emerged in my mind about why we needed this reference. I then heard the explanation given by the hon. Member for Peterborough (Mr. Ward), who appeared to be saying that everything was explained in the debate in another place. I then wanted to question this reference to Part III. Then I heard my hon. and learned Friend the Member for Kinross and West Perthshire (Mr. Fair-bairn) and became even more confused. The mystery seems to be becoming deeper.
I looked up what was said on Report in another place when the noble Lord who moved the amendments said—and I paraphrase his words—that the amendment was simply to make clear that the provisions of Part I were subject to the provisions of Part III. But he did not say why it needed to be made clear.
A similar provision for Part II was introduced by Lord McCluskey and was accepted in Committee. I therefore tried to find out what Lord McCluskey said. I was groping for an explanation for this strange mystery. The speech of Lord McCluskey occupied no more than about a dozen lines in Hansard. He said that his amendment was required because Part III contained various provisions exempting contracts from the controls in Parts I and II. For that reason the provisions of Part II required to be qualified by a general reference to Part III. That does not explain the fundamental answers to 1092 the questions asked by my hon. Friend the Member for Faversham.
If Part III is all-embracing and the provision defines the whole of the United Kingdom, why does it need to be mentioned at all in this amendment? I hope that the hon. Member for Peterborough will give answers to this strange mystery.
§ Mr. FairbairnI hope that my hon. Friend appreciates that Lord McCluskey was a Solicitor-General of Scotland and is a very distinguished member of the Bar. I am sure that if there was an explanation, he would have given it.
§ Mr. Anthony GrantI am sure that my hon. and learned Friend is right. However, Lord McCluskey's short speech did not make apparent the reasons behind the amendment. I shall conclude my remarks now—or perhaps I should keep going until the Minister has finished being briefed by his Department.
§ The Minister of State, Department of Prices and Consumer Protection (Mr. John Fraser)I am sure that the Committee wants to make progress. The Bill was considered by the House of Lords and particularly by its judges. The Master of the Rolls called it the most important change in the law of contract that we have known in this century. I believe that the House should agree with the Lords, that very distinguished body of judicial figures, in this amendment. As a result of the deliberations in another place the Bill is now in a clearer form than it was when it left this House.
§ Mr. GrantI accept that the House of Lords is bristling with legal talent. The whole weight of learning resides in the other place.
If the hon. Member for Peterborough says that this should be done, I am prepared to accept that, but if there is another explanation, I shall accept that.
§ Mr. FairbairnIt is very unwise to take from Ministers in particular the concept that the genius of judges should be accepted, regardless of the justification of their judgment. If I may mention Scotland again, we are all suffering from the genius of Lord Wheatley, a member of the other place and the Lord Justice-Clerk of Scotland, whose genius told us that we must reorganise local government in a manner which has turned out to be unpopular, inefficient and very expensive.
§ Mr. GrantI do not think that I could even tiptoe gingerly into the delicate matter of the rival merits of Scottish Law Lords and Law Officers. I leave that to my hon. and learned Friend. I am prepared to accept what the Minister says. I have been a Minister myself, and I know that Ministers act responsibly.
§ Mr. MoateI think that the Minister said that the Bill had been described as the most important change in the law of contract this century. Does not my hon. Friend think it strange that a proposal of this magnitude should be put before a half-empty House at this time on a Friday night, or at any time on a Friday, and in the form of a Private Member's Bill? Such a matter requires consideration in depth.
§ Mr. GrantI am inclined to agree. I have sympathy with the principle behind the Bill, but I recall that its older brother, half-brother or cousin—the Supply of Goods (Implied Terms) Act 1973—which I strongly supported and in the passage of which I played a part, was a Government Bill. This Bill should also be a Government Bill as it is so complex and profoundly important.
Therefore, I say with the greatest respect to the hon. Member for Peterborough, who has valiantly fought the Bill through to this stage, that I should have preferred the] Bill to come before us at the proper time with the whole panoply of the Government behind it so that we might be given explanations.
§ Question put and agreed to.
§ Lords amendment: No. 2, in page 2, line 3, leave out from "1" to end of line 5.
§ Mr. SpeakerWith this amendment we may take Lords Amendment No. 51.
§ Mr. WardA number of technical defects came to light in Clause 26 as it was. Lords Amendment No. 51, which is a complete redraft, puts the matter right.
Despite the new structure of the clause as recommended by their Lordships, the policy is the same. The clause makes provision for contracts for the carriage 1094 of passengers by sea until the provisions of the Athens Convention have the force of law. It is hoped that there will be a Merchant Shipping Act to carry those provisions into effect before very long.
§ Mr. MoateOnce again the speech of the hon. Member for Peterborough (Mr. Ward) has been remarkable for its brevity in introducing a substantial new clause. I wish to reiterate my anxiety that we should not be presented with significant new law at a time arid in a manner that deny the right of proper scrutiny.
I am no lawyer and I cannot say offhand whether the new Clause 26 is absolutely precise and correct. it is the job of the House to ensure that it is. We may place great reliance upon another place and have immense faith in their Lordships' legal expertise, but it is still the duty of the House to examine this matter. I am not aware that there is always universal acceptance on the Government Benches of the total wisdom of their Lordships, but on this occasion Labour Members seem to be accepting it. We have on this occasion a very substantial new clause.
§ Mr. John FraserThis is not an entirely new clause. The Athens Convention, which has not yet been incorporated into our law by ratifying statute, has been embodied in the Bill. This was available for discussion at Report stage and it went in that form to the other place. The other place found that there were considerable defects in the drafting of that particular clause so it was withdrawn. It is wrong to suggest that there is a new principle in this provision. It has simply been redrafted to take account of the Athens Convention.
§ Mr. MoateI accept that, but technically it is a new clause and it is substantially larger than the one it replaces —almost twice as long. One does not measure the merits of a clause by its length, but if it is longer that gives more scope for analysis and for ensuring that it is legally precise and correct.
I understand that the new clause provides interim arrangements for the period between the signing and the implementation of the Athens Convention. It makes sense that there should be an interim measure to protect the consumer in the manner envisaged.
1095 One of the matters most often raised is the question of conditions in travel by sea ferries. This provision would have a particular effect on people using cross-Channel ferries. Faced with this signicant amendment, the House could have been given examples in real, human terms of the effect of legislation of this kind.
It is all very well to be presented with a legally complex clause, but we are discussing human understanding. If we are to educate the public in their rights and tell them that in future the conditions of contract are not precisely what they mean and that they need not take them as gospel, the first stage is to explain to the House the down-to-earth implications of the amendment.
I expect that the hon. Member is anxious to get his Bill through by 5 o'clock. But I understand that time may be provided for Lords amendments—the Leader of the House said that yesterday —and the hon. Member would be doing more justice to his Bill if he explained clearly, concisely and meaningfully to the House and the public the meaning of his amendment.
How will the Athens Convention be translated into United Kingdom law? The hon. Member said that this provision would be embodied in the Merchant Shipping Act, but that is not quite what it says. I believe that we are to have regulations issued under this provision—I assume under Clause 26—which will embody the terms of the Athens Convention when it is implemented. It would be helpful to know whether we are to have a Merchant Shipping Bill for dealing with this proposition, or a Statutory Instrument, which is not quite as satisfactory.
4.45 p.m.
In the last lines of the new clause there is the statement:
a statutory instrument containing the regulations shall be subject to annulment in pursuance of a resolution of either House of Parliament.I think that the House allows negative procedure Statutory Instruments to go through too easily. This is a matter of importance. The conditions of carriage by sea, particularly on ferries, which have often been quoted as requiring further consumer protection, emphasise that. I think that this is a matter for the affirma- 1096 tive procedure, but this is a provision for the negative procedure. I question whether it is appropriate. I agree that if we objected to all the negative procedures, we should never cease debating the point. Nevertheless, it is right to make a protest when one has the opportunity.Can the hon. Member for Peterborough or the Minister tell me whether, as an interim implementation of the unimplemented Athens Convention, the clause is on all fours with its provisions? That would be a helpful statement. Practical examples of how the clause will help the consumer would be helpful. I think that is the right way to present matters of this kind.
§ Mr. John FraserPerhaps I may reply to the hon. Member for Faversham (Mr. Moate). If the clause did not appear in the Bill, the carriers of passengers by sea would be liable without limit for death or personal injuries caused to passengers. They would not be able to contract out of their liability for death or personal injury.
The Athens Convention is not yet law. Therefore, were the clause not to be included, a shipper would not be able to contract out of his liability. He would be liable for death or personal injury of a passenger aboard a ship.
Shipping interests properly represented to us that they would be put at a disadvantage with their foreign competitors if such a clause were not included in the Bill. We thought that the best way to deal with the matter was to anticipate the Athens Convention. We suggested an exemption clause dealing with death or personal injury that was on all fours with the Athens Convention—it has not yet become law in this country—and that provided limits of compensation for death or personal injury. That is the first part of the new clause.
The second part gives powers by regulation to impose an alternative limited liability. We are breaking new ground and dealing with international matters. Shippers say "The Athens Convention may present difficulties if you anticipate it. There are other kinds of limits of liability that we should like to have in the meantime instead of the Athens Convention. Will you approve of them?".
We think it right to say that we can approve of alternative limits of liability 1097 for death or personal injury provided that they are approved not by ministerial fiat but by regulations that would have to be laid before the House and be subject to annulment under the negative procedure. Pending the ratification of the Athens Convention, the clause gives some protection to shipping companies and does not impose a n extra liability upon them. We think it right to do that, because we do not want to disturb their competitive relationships with foreign owned companies.
§ Question put and agreed to.
§ Lords amendment: No. 3, in page 2, line 14, at end insert "of the occupier ".
§ Mr. SpeakerWith this amendment we may also take Lords Amendments Nos. 26 and 32.
§ Mr. WardThis amendment will ensure that the Bill shall not apply when occupiers of premises use them solely for private purposes. If I may quote a human example in my constituency, Lord Fitzwilliam occasionally holds a fete in his grounds, and it will be necessary for the responsibility for all matters relating to that fete to rest on those who run the fete and not on Lord Fitzwilliam. Therefore, this is a simple protection for which their Lordships asked in respect of people who might wish to use their private houses for such unusual business purposes. I commend it to the House.
§ Mr. MoateI am grateful to the hon. Gentleman for quoting a human example. When I saw the Lords amendment, I put in my notes that it was a "travelling circus amendment", since its object was to protect the person with a rather large garden who wished to allow it to be used for a travelling circus. The hon. Gentleman gave an example involving a noble Lord in his constituency who allows his land to be used for a fete.
I understand that the purpose of the amendment is to give special preferential treatment to people with large gardens. I cannot see the point of the amendment. The object is to see that restrictions that normally apply will not apply to such people. I am delighted that the hon. 1098 Gentleman is so concerned about noble Lords with large gardens.
§ Mr. MoatePresumably, the hon. Gentleman is supporting the Lords amendment. The matter puzzles me because I am not convinced that there is a case for the amendment.
If a man who uses his land for a business then enters into a contract with an individual for him to use that land for the purposes of a fair or a circus, there is no difference between that man using that land for commercial purposes and the man who is a private occupier of land and who lends it for the purpose of a fair or circus. That would still be private land, and I cannot see the difference. I am not sure why the hon. Gentleman is so anxious to confer this special privilege on large landowners.
§ Mr. FairbairnPerhaps my hon. Friend will bring his arguments to a proper conclusion and tell the hon. Member for Peterborough (Mr. Ward) what the law is. He gave an example of Lord Fitz-somebody-or-other holding a fete in his garden and suggested that that would involve a business purpose. In fact a fete would not be a business purpose. The definition of "business premises" for business purposes is very extensive. However, I repeat that using one's garden for a fete is not a business purpose. Therefore, the matter the hon. Gentleman wants to cover is not covered by the amendment.
§ Mr. MoateNor is it clear in those circumstances in terms of a fete that there will be any form of contract or normal contractual relationship between the promoter of a fete and landowner. In the case of a circus, there would have to be a more formalised contract, albeit not necessarily couched in the most precise terms. I am not convinced of the necessity for the amendment, and I should be surprised if Labour Members thought that this related to a worthy cause—namely, that certain members of the public should be subject to special terms and specific exemptions. I am also concerned about the phraseology and drafting of the amendment because, unless I have it wrong—and if so no doubt 1099 the hon. Member for Peterborough will tell me—it will read
from the occupation of premises used for the business purposes of the occupier''.If the exclusion applies to business purposes of the occupier that would imply that business premises would be exempt. The hon. Gentleman cannot mean that, but that is how the clause is couched.We have been told repeatedly of the legal expertise of their Lordships and that we should automatically accept what they tell us as right, but this strikes me as an extremely bad piece of drafting that will cause endless confusion. should have thought that it would allow a considerable number of references to the courts for decisions on whether certain contract terms applied in the circumstances of the occupation of premises used for the business purposes of the occupier.
The amendment does not even achieve what the hon. Member said it would when he introduced it. It is a dubious proposition and badly worded. It is open to the hon. Member to tell us more about it, and, if he does not, I shall be inclined to vote against it.
§ Mr. John FraserI should have thought that the wording of paragraph (b) was perfectly clear. The clause relates to the occupation of premises for business and for the business purposes of the person who occupies them.
The hon. Member for Faversham (Mr. Moate) raised a problem about those people who rent their land out occasionally—for example, a person who makes available a field for use as a car park. That is possibly a good example. Part of the purpose of the Bill is to protect people and to allow them to obtain damages for death or injury if injured in such a place. If someone makes a field available to National Car Parks, NCP could not contract out of its liability for death or personal injury to those using it, because NCP would be the occupier using the land for business premises. If one wants to impose a liability upon occupiers generally, that would require separate legislation and would not be appropriate to this Bill.
§ Mr. FairbairnThe amendment goes much further than the Minister and the hon. Member for Peterborough (Mr. Ward) realise. By making the Bill refer exclusively to the occupier, one is negativing its principal effect. If the intention, referring to contract and tort in Clauses 2 and 7, applies only to business liability —so, presumably, excluding domestic liability and I imagine that that is the general purpose—one then excludes the occupation of premises used for business purposes from the provisions. That is all right. We understand what is meant by the occupation of premises used for business purposes, but if one adds the words "of the occupier", one excludes a large category of persons who would be covered otherwise.
This is a far-reaching amendment. With great respect to the hon. Member for Peterborough, it has nothing to do with somebody letting out his garden or land for a fête. It has to do with the occupation of premises used for business purposes and it does not matter who occupies them. If the Bill is restricted to the occupier, whether temporary or permanent, that excludes all other employees, owners and everybody else. As I understand it, that was not the intention of the Bill at all.
If the hon. Member for Peterborough can reassure me on that point, I shall be delighted. If one adds the words "of the occupier", one totally changes the meaning of the clause to cover a generality of business liability which it was not the original intention of this part of the Bill to cover. I am not saying that I approve, but it was not intended to cover the whole generality of business liability. Far from relating merely to people strolling on one's lawns and selling home-made lemon curd for an afternoon, the amendment would exclude a large number of people, including ICI.
I urge the hon. Member for Peterborough to think again and to withdraw the amendment, because it has the reverse effect to his original intention—
§ It being Five o'clock, the debate stood adjourned.
§ Mr. SpeakerFurther consideration what day? No day named.